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0) Grundbegriffe II: Humanitäre I. Locus classicus der Diskussion die Definition von J.L.Holzgrefe (2003:18): humanitäre Intervention sei …the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied… Holzgrefe, J.L. (2003): The humanitarian intervention debate, in: Holzgrefe, J.L./ Keohane, Robert O. (Hrsg.): Humanitarian Intervention. Ethical, Legal, and Political Dilemmas. Cambridge: Cambridge U.P., S.15 – 52.

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…aus der UNO-Charta… Art.2(4) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … Art. 2(7) "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state."

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Caveat The principle of nonintervention does not rule out the application of enforcement measures in case of a threat to peace, a breach of peace, or acts of aggression - cf. Ch. VII UNCh – if so resolved by the Security Council The Genocide Convention of 1948 also overrode the nonintervention principle to lay down the commitment of the world community to prevent and punish genozide – its application however was a Cold War problem… in the same line as the 1948 Universal Declaration of Human Rights & the 1966 Conventions on Civil & Political, and Economic, Social, and Cultural rights…

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Problemstellung (4) Wandel in der Auffassung einzelstaatlicher Souveränität a) No Government has the right to hide behind national sovereignty in order to violate the rights or fundamental freedoms of its people. Kofi Annan, 07.04.1999, zum Kosovo Konflikt b) Two concepts of Sovereignty, Kofi Annan, The Economist 18.09.1999 State sovereignty, in its most basic sense, is being redefined – not least by the forces of globalisation and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. …At the same time individual sovereignty … has been enhanced by a renewed and spreading consciousness of individal rights…

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Problemstellung (5) Entschliessung UN-Weltgipfel, Sept. 2005: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and neces- sary means. We accept that responsibility and will act in accordance with it… R2P auf dem Weg ins Völker(gewohnheits)recht ??

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Consequences … if you are a Realist…(I) International humanitarian intervention poses no awkward questions to political decision- makers. Within a rationally calculated framework of national interests and political expediency, intervention can be regarded as one instrument in a whole battery of means from gentle persuasion to outright warfare. Reference back to the ethics of responsibility – Verantwortungsethik (Max Weber)

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Ethics of responsibility vs. Ethics of conviction/principle Problem: establish a relationship between the strength of your convictions/principles and the consequences/costs of your actions according to convictions/principles Ethics of responsibility = optimization of principles and consequences of action Ethics of principle = maximization of principles without regard to cost/conse- quences of principled action

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Consequences …if you are a Realist (II) What has to be assured in H.I. is a logically cogent definition of aims, a clear formulation of a maximizing/ optimizing/satisfying ends - means – relationship, Clausewitz: triad of (political) purpose – (military) aims – (necessary) means

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Consequences …if you are a Realist (III) What has to be further assured in H.I. is a realization of the availability of the ressources mentioned a clear calculation of hardware, manpower, and financial ressources needed in order to fulfill specific aims, a communicable entry – stay - exit – strategy.

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Finally … if you are a Realist… (legal) form follows (political) function

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Consequences…if you are a Rationalist… Early discussion of intervention backtraced to 16th & 17th Century Internat. Law classics – from Vitoria to Grotius De Jure Belli ac Pacis 1625 states that states are entitled to exercise the right to H.I. ves- ted in human society on behalf of oppres- sed individuals & to end human suffering Grotian Tradition in International Affairs allows full-scale use of force to end human suffering

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Finally … if you are a Rationalist (political) function follows (legal) form

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Consequences… if you are an Idealist … or, respectively, a Liberal Internationalist, or, respectively, a Liberal Institutionalist… Problem: States, particularly in the Third World, have long seen intervention as a threat to their sovereignty. Humanitarian intervention is regarded as no different [cf.Myanmar May 2008]. Interventions have to be about regime change if they are to have any chance of accomplishing their stated goal [??]

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H.I. - a post- Cold War dead end ? tension between the principle of state sovereignty and evolving international norms relating to human rights and the use of force Proponents: imperative action in the face of human rights abuses, over the rights of state sovereignty Opponents: often viewed as a pretext for military intervention devoid of legal sanction, selectively deployed and achieving only ambiguous ends – cf. In particular Third World criticism, e.g.non-recognition by group of 77: H.I. a neo-imperialistic tool !

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The United Nations, formed in the aftermath of World War II to promote peace and stability, recognize the importance of sovereignty… Cf. Art. 2(7) "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." The principle does not rule out the application of enforcement measures in case of a threat to peace, a breach of peace, or acts of aggression – cf. Ch. VII.

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The Genocide Convention of 1948 also overrode the nonintervention principle to lay down the commitment of the world com- munity to prevent and punish – its (non- ) application however is a Cold War problem… same as the 1948 Universal Declaration of Human Rights & the 1966 conventions on civil & political, and economic, social, and cultural rights… Rwanda 1994 and Srebrenica 1995 highlight the complexities of international responses to crimes against humanity.

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The dialectic parallel… Along with the emergence of non- intervention as a universal norm, a UN- initiated parallel development was in conflict with this principle: the development of human rights as a global issue. Article 1 of the Charter emphasises promoting respect for human rights and justice as one of the fundamental missions of the organisation.

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The idealists quandary… Humanitarian intervention, as the most assertive form of promoting human rights at a global level, was and is clearly incompatible with norms such as non- intervention and state sovereignty. Art. 39 UNCh – The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken…to maintain or restore international peace and security. Intervention is no automatism, but contingent, in the end, on the political interests of the Permanent Members/Veto Powers of the Security Council

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Solution: change of perspective In 2000, the Canadian government and several other actors announced the establishment of the International Commission on Intervention and State Sovereignty (ICISS) – task: to address the challenge of the international community's responsibility to act in the face of the gravest of human rights violations while respecting the sovereignty of states. "If the international community is to respond to this challenge, the whole debate must be turned on its head. The issue must be reframed not as an argument about the 'right to intervene' but about the 'responsibility to protect.… " (Gareth Evans, Foreign Affairs, 2002)

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Background to conceptual change The end of the Cold War The massive rise of intrastate conflict, civil war, and internal violence in the 1990s The development of weak & failing states in the 4th world NATO intervention in the Kosovo 1999 – legitimate, but not legal – without UN S.C. mandate (fear of Russian veto) The development of the concept of human security stressing limits to sovereignty

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R2P much more than military intervention – a whole continuum The responsibility to prevent : to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk; The responsibility to react : to respond to situations of com- pelling human need with appropriate measures, which may include coercive measures like sanctions, international prosecution, and, in extreme cases, military intervention; The responsibility to rebuild : to provide, particularly after a military intervention, full assistance with recovery, reconstruction, and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

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…but the main point still is… …the question of military action remains, for better or worse, the most prominent and controversial one in the debate. Whatever else it encompasses, the re- sponsibility to protect implies above all else a responsibility to react - where necessary, coercively, and in extreme cases, with military coercion - to situations of compelling need for human protection. (Evans 2006, 709)

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R2P – a continuing story… Report by the High-Level Panel on Threats, Challenges, and Change, December 2004 [ A more secure world: Our shared responsibility] Resolution by the World Summit, Sept. 2005: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This re- sponsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it… R2P accepted into customary international law ? ?

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R2P – the question of legitimacy ICISS identified five criteria of legitimacy to be applied by the Security Council to any intervention decision: (1) Just Cause: Is there serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: A. Large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action or state neglect, inability to act, or a failed-state situation; or B. Large-scale ethnic cleansing, actual or apprehen- ded, whether carried out by killing, forced expulsion, acts of terror, or rape.

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R2P legitimacy (2) (2) Right Intention: Is the primary purpose of the proposed military action to halt or avert human suffering, whatever other motives may be in play? (3) Last Resort: Has every non-military option for the prevention or peaceful resolution of the crisis been explored, and are there reasonable grounds for believing lesser measures will not succeed? (4) Proportional Means: Is the scale, duration, and intensity of the planned military action the minimum necessary to secure the defined human protection objective ?

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R2P legitimacy (3) (5 ) Reasonable Prospects: Is there a reaso- nable chance of the military action being successful in meeting the threat in question, and are the consequences of action not likely to be worse than the consequences of in- action ? Problem: subcutaneous revival of the Just War doctrine ??

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Just War criteria I Just cause –The reason for going to war needs to be just and cannot therefore be solely for recapturing things taken or punishing people who have done wrong; innocent life must be in imminent danger and intervention must be to protect life. "Force may be used only to correct a grave, public evil, i.e., aggression or massive violation of the basic human rights of whole populations." Comparative justice –While there may be rights and wrongs on all sides of a conflict, to overcome the presumption against the use of force, the injustice suffered by one party must significantly outweigh that suffered by the other.. Legitimate authority –Only duly constituted public authorities may wage war.

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Just War criteria II Right intention –Force may be used only in a truly just cause and solely for that purposecorrecting a suffered wrong is considered a right intention, while material gain or maintaining economies is not. Probability of success –Arms may not be used in a futile cause or in a case where disproportionate measures are required to achieve success; Last resort –Force may be used only after all peaceful and viable alternatives have been seriously tried and exhausted or are clearly not practical. It may be clear that the other side is using negotiations as a delaying tactic and will not make meaningful concessions. Proportionality –The anticipated benefits of waging a war must be proportionate to its expected evils or harms.

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Open problems… political Have humanitarian interventions to be about regime change if they are to have any chance of accomplishing their stated goal ?? Should the international community develop, parallel to R2P doctrine, the concept of an obligation to accept help ?? Would it be advisable to regionalize the production of security and make the regions – under the general umbrella of the UN – primarily responsible for good humanitarian governance ??